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Increased penalty for employers who employ overstayers

29 November 2021. Published by Andrea Randall, Partner and Angel Leung, Trainee

Immigration (Amendment) Ordinance 2021 (“IAO”)

The IAO came into effect on 1 August 2021, bringing a myriad of changes to the law relating to immigration and deportation. What it means for employers is that they are now potentially facing heavier penalties for employing illegal workers.

What does this mean for employers?

The IAO has also increased the maximum penalty for employers who employ illegal workers from a maximum fine of HKD350,000 and 3 years of imprisonment to a maximum fine of HKD500,000 and imprisonment for up to 10 year.

In addition, where the employer is a corporate, directors and/or other responsible officers could also be personally held liable if the offence of unlawful employment was committed with their consent or connivance of, or was attributable to any neglect on their part.

The High Court has laid down sentencing guidelines that employers who employ illegal workers should be given an immediate custodial sentence and the employers are expected to take all practicable steps to determine whether a person is lawfully employable prior to employment. 

Takeaways for employers

Employers should review their internal policies and procedures to ensure they have evidence that their employees are able to work for them in Hong Kong. Where employees are working pursuant to a work visa, employers should ensure they have a clear record of the visa conditions and track the expiry dates of any visas.

Where extension of work visa is required, employees should ensure the application is made in good time before its expiry.